For the last 2 years I have been writing over at my home blog, Going Through the Motions, about the strange and sad saga of Troy Anthony Davis. Davis sits on Georgia’s death row and is likely to be set for execution very soon, even though seven of the nine witnesses who testified against him at his murder trial have since recanted their stories and told a horrific tale of police coercion and the “real killer” who offered up Davis to police to cover his own tracks. Despite this dramatic turn of events, Georgia’s Supreme Court declined to grant Davis a new trial so that the testimony of the recanting witnesses could be heard for the first time in open court, and the Supreme Court also denied certiorari over his appeal. Georgia’s Board of Pardons and Paroles denied Davis’ clemency petition as well. It would seem that Davis is nearly out of options.
A host of celebrities, public officials from both parties, law professors, and religious figures have pled for clemency for Davis and asked the courts to intervene to prevent execution of a potentially innocent man before the evidence of his innocence is ever heard in open Court. One of those former public officials pleading for legal intervention is former Georgia Congressman Bob Barr, who wrote an impassioned op-ed in yesterday’s New York Times claiming that the Anti-Terrorism and Effective Death Penalty Act (AEDPA) should not serve as a procedural bar to the hearing of claims of “actual innocence” such as the one that Davis has put forth in his last ditch federal appeal recently denied by the Eleventh Circuit. Barr correctly notes that he was one of the authors of the AEDPA, passed in 1996 as part of the “Contract With America.” But he has a lot of nerve to claim that the very AEDPA that he helped to write and to pass was not intended to be used against defendants like Davis who claim they are actually innocent.
AEDPA made it through Congress by huge bipartisan majorities, after a campaign for the legislation that was directly tied to public horror and outrage over Timothy McVeigh’s bombing of the Murrah Federal Building in Oklahoma City. The proponents of the bill argued that it could take decades to execute McVeigh unless Congress reigned in the availability of multiple habeas corpus petitions designed to fend off executions. As part of their campaign to pass the legislation, Barr and others cited the most egregious and notorious examples of post-conviction appeals that extended on for 20 or 30 years before execution actually occurred.
Barr and the other authors drafted language in AEDPA that would limit capital defendants convicted in state courts to just one federal habeas corpus petition, and to require that only claims that had previously been brought in state court post-conviction proceedings could be brought in that habeas petition. Any constitutional claim, such as ineffective assistance of counsel, that had not previously been included in the state post-conviction appeal would be procedurally waived unless the basis for the claim was unknown at the time of trial. (For example, if the defense only learned several years after the conviction that a cop had planted evidence at the scene of the crime, that claim would generally not be procedurally defaulted.)
That was the part of AEDPA that got a lot of attention, because it was easy to explain to the public and the press that the goal of the legislation was to limit capital defendants to one federal appeal in order to speed the process along. The problem is that AEDPA did far more than simply limit habeas petitions to one petition with only non-procedurally defaulted claims. It also dramatically altered the burden of proof for other prisoners seeking habeas relief.
28 U.S.C. §2254 was amended by AEDPA to raise the burden of proof for capital defendants challenging their state court convictions. It prohibited federal judges from granting habeas relief to such defendants unless the state court’s adjudication of the conviction “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” In addition, for any factual issues that had been decided by the State Court,” a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” But wait, there’s more! AEDPA also addressed defendants who “failed to develop the factual basis of a claim in State court proceedings,” and prohibited evidentiary review of such claims unless (A) the claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” This is the portion of the statute that the 11th Circuit cited in denying Davis’ most recent federal appeal.
Interpreting all the serpentine twists and turns of habeas corpus law is complicated, messy and mind-numbing (I’m sure everyone stopped reading 2 paragraphs ago), but the point I am making is that Barr and the other co-authors deliberately raised the bar for the burden of proof of those attacking the factual findings underlying their convictions in federal habeas corpus proceedings. AEDPA does not carve out a distinction for defendants claiming actual innocence, and thus the 11th Circuit applied the procedural requirements of AEDPA to Davis’ request for permission to file a subsequent habeas petition. In denying Davis’ request, the 11th Circuit noted that AEDPA very specifically enacted a much higher “clear and convincing evidence” standard to replace the previous “more likely than not” standard that would previously have applied.
Barr can claim now that he never intended for defendants like Davis to be stuck without any court to hear his evidence of actual innocence, but if Barr truly believed that all AEDPA would do is to shorten the appeals process for capital defendants, then why did he and the other authors also muck around with the burdens of proof defendants must meet to attack the factual underpinnings of their convictions? AEDPA went far beyond what Barr now claims he intended it to be. As one of the authors and proponents of the legislation, he should know exactly what it did to federal habeas statutes, and he should not be surprised when federal courts interpret the provisions of AEDPA as a bar to claims like Davis’s.
Davis will likely not receive a grant certiorari on his direct habeas corpus petition with the Supreme Court, relief that has been granted only a handful of times in the Court’s history. At least two of the SCOTUS justices have indicated that they do not believe execution of an innocent man is a constitutional violation (Scalia and Thomas in concurrence here) and SCOTUS has already ruled in Hererra v. Collins that without an underlying constitutional violation, an independent claim of actual innocence cannot be brought in a subsequent habeas petition. The odds of SCOTUS even granting certiorari are slim to none, and there is virtually no chance that they will take this opportunity to announce a new constitutional exception for the actually innocent. It will be a legal and constitutional tragedy, but Davis’ exhaustion of his appeals and his execution by the State of Georgia are now all but certain.
If Bob Barr doesn’t like that result and is looking for someone to blame, he should probably start with himself.
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